Emory Law Journal

Volume 65Issue 3

Amidst the Walking Dead: Judicial and Nonjudicial Approaches for Eradicating Zombie Mortgages

Andrea Clark | 65 Emory L.J. 795 (2016)

The collapse of the residential housing market in 2007 brought with it a wave of foreclosures. Subprime borrowers, who were once elated by loans they secured from lenders, suddenly found themselves strangled by the predatory terms of their newfound loans and ultimately became unable to pay their outstanding loan balance. This Comment analyzes the different circumstances under which lenders can foster the creation of zombie mortgages. Particularly, this Comment focuses on stalled and incomplete residential foreclosure sales and failures to execute deeds of sale, tactics which serve to maintain legal liability of the mortgaged property on a borrower. Notwithstanding a lender’s right to foreclose on residential property to satisfy the obligations that it is owed under a promissory note, this Comment argues that strategic delays in completing a foreclosure sale entitle state courts and legislatures to either (1) force a lender to complete a sale or (2) divest a lender from both its right to foreclose and its security interest.

Read More »

OPA or NOPA? Restoring Cooperative Federalism in Oil Pollution Enforcement

Jennifer Lamb | 65 Emory L.J. 841 (2016)

Catastrophic oil spills are some of the most visible and devastating contemporary environmental disasters. Unfortunately, a loophole in the Clean Water Act has significant potential to limit the United States’s ability to prosecute those who spill oil. This Comment argues that the application of statutory preclusion to Oil Pollution Act cases is contrary to the original intent of the Congress in drafting the statutory preclusion provision of the Clean Water Act and subsequent Oil Pollution Act amendments. Further, applying statutory preclusion to oil pollution cases undermines effective enforcement. This Comment proposes that the Environmental Protection Agency (EPA) should take a leadership role by arguing that its interpretation of the statutory preclusion provision in its regulations should be entitled to deference under Chevron v. National Resource Defense Council. Providing Chevron deference to the EPA’s prosecutorial determinations will resolve a three-way split among the federal circuits. A uniform rule will also facilitate effective relationships under cooperative federalism for the benefit of the environment.

Read More »

Resurrecting the Public Voice: The Expansion of Standing in Patent Litigation

Roderick Blevins | 65 Emory L.J. 893 (2016)

The Federal Circuit’s dismissal of Consumer Watchdog’s appeal in 2014 illustrates a systemic shortcoming of standing in patent law. More specifically, the current implementation of the federal standing doctrine in patent litigation prevents public interest organizations from litigating the validity of patents. This shortcoming appears in spite of the fact that the patent system exists as a public endorsement of a private right in exchange for a purported social contribution on the part of the inventor and her invention. Instead of constructing an ill-fated legislative solution, this Comment suggests that the shortcoming may be overcome through action at the Patent Office. More specifically, the Patent Office, in promulgating rules relating to its internal operation, may establish a committee to recognize certain public interest organizations for membership in a special program. That program would offer those select organizations—chosen on the basis of meritorious criteria and for a limited term—the opportunity to submit themselves to monetary penalty upon losing an inter partes reexamination. The monetary loss then constitutes an injury in fact, the baseline requirement for appeal from administrative action.

Read More »